Calcutta High Court (Appellete Side)
Rajesh Mishra vs M/S. Esbi Transmissions Private ... on 28 January, 2011
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
CRR NO. 3832 of 2008
Rajesh Mishra
Vs.
M/s. ESBI Transmissions Private Limited
PRESENT :
THE HON'BLE JUSTICE MRINAL KANTI SINHA
Mr. Shiv Sankar Banerjee
Ms. Madhupriya. .. for the petitioner.
Mr. Kaushik Gupta
Mr. Anirban Tarafdar. .. for the opposite party.
Heard on : 5.8.2010, 11.8.2010, 18.08.2010, 23.8.2010, 24.8.2010, 25.8.2010,
02.9.2010, 9.9.2010, 15.9.2010, 4.10.2010,10.11.2010, 12.11.2010, 23.11.2010,
01.12.2010, 15.12.2010, 22.12.2010, 11.01.11.
Judgement On : 28. 01. 2011.
Mrinal Kanti Sinha, J.
Heard the learned Advocates for the parties.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 has been directed against the order dated 22 August, 2008 passed by the learned 3rd Metropolitan Magistrate, Kolkata in case No. C/ 23315/2008 (M/s ESBI Transmissions Private Limited ) whereby the 2 learned 3rd Metropolitan Magistrate, Kolkata ordered issuance of process against the accused finding a prima facie case under Sections 500/501 of the Indian Penal Code.
2. It is the case of the petitioner/accused that he is working with M/s. Vulcan Technologies Private Limited, a subsidiary of Vulkan Kupplungs, as a Managing Director having its office at Pune, Maharashtra, and the said Vulkan Kupplungs is world leader of T.C. and its spare parts, which are used in marine and industrial application. The opposite party/ complainant runs business of manufacturing various industrial products including Spare Rubber Element, which is a spare part of Coupling and Mr. Samir Bose is the director of the opposite party/complainant. The complainant/opposite party was associated with the brand name of parent company of the petitioner named Vulkan from 1982 to 1985, but as there was dispute between the said Vulkan Kupplungs and the opposite party/complainant due to dispute between them in various Courts of law of Bochum (Germany), a settlement agreement was made between the parties settling all the disputes. M/s. Det Norske Veritas (in short DNV) being a renowned certification institution of international repute issues certificates with regard to standards of various maritime products and spare parts. The opposite party/complainant submitted an application to said DNV on 9th June, 2008, seeking certification of its product, or spare part namely Spare Rubber Element being product identification number ESBI-X 20101000R and in the inspection certificate the opposite party/complainant sought to mention that the 3 aforesaid product is equivalent to "EZ201S", which is the product identification number of the petitioners similar product, suppressing the material fact of the aforesaid settlement agreement and its promise to cease and desist from using in any part of the World the words "Vulkan", "EZ", "EZS", "EZR" in connection with sale/promotion of their products and further undertaking not to use in any way the aforesaid codes to refer and identify the respondent's products. Relying on the representation of the opposite party/ complainant DNV issued certificate dated 1st July, 2008, to the opposite party/complainant in respect of its product bearing product identification NO. " ESBI - X 2010 1000R" expressly mentioning that the product of the opposite party/complainant is equivalent to petitioner's product EZ -201S, though the same is not equivalent to the product of the petitioner.
3. Having knowledge of issuance of aforesaid certificate dated 1st July, 2008, to the opposite party by DNV, the petitioner sent E-mail dated 9th July, 2008, to Mr. Kamal Kumar, Country Manager, having office at Mumbai, which was exclusively and confidentially for the use of the addressee. In the said E- mail it was stated by the petitioner that he has no objection for manufacture of rubber element by the opposite party/complainant but they should use only their model number and should not use the model of Valkun. The petitioner referred the opposite party/ complainant as a " spurious manufacturer" therein in a sense that which was not proceeding from the main or true source though the said E-mail was confidential, yet that was forwarded by the office of the DNV to 4 the opposite party/complainant at Kolkata on 10th July, 2008, without knowledge and authority of the petitioner. The said DNV conducted investigation into the complaint of the petitioner and vide E-mail dated 8th August, 2008 informed the petitioner that the certificate issued by it to the opposite party/complainant has been withdrawn as it was misrepresented. The opposite party/ complainant on 14th August , 2008 filed a frivolous criminal private complaint as an act of vengeance against the petitioner without sending any letter or legal notice with a mala fide intention to harass the Pune based petitioner and to abuse the judicial proceedings of this Court out of business rivalry against the petitioner. On the basis of the said complaint learned Metropolitan Magistrate took cognizance and on the basis of the copy of summons from the Court of learned 3rd Metropolitan Magistrate at Kolkata with the allegation of offence of defamation under Sections 500 / 501 of the Indian Penal Code, 1860, the petitioner has appeared before the Court concerned on 12th September, 2008. The opposite party/ complainant also instituted a civil suit on the same cause of action before the Hon'ble High Court seeking damages of Rs. 50,00,00,000.
4. Being aggrieved and dissatisfied with the continuation of the proceeding or issuance of summons against the petitioner, the petitioner has filed the present revisional application on the ground that the learned Court below erred in law as well as in fact and there was no prima facie case, and the continuation of the aforesaid criminal case would be an abuse of process of the Court. 5
5. It appears that on the basis of complaint of the opposite party/complainant, Learned Chief Metropolitan Magistrate, Kolkata, took cognizance and transferred the complaint for enquiry and disposal by the Learned 3rd, Metropolitan Magistrate, Kolkata, who after recording initial statement of the complainant and the witness under Section 200 of the Code of Criminal Procedure ordered issuance of process against the accused petitioner under Sections 500/501 of the Indian Penal Code finding a prima facie case, and fixed date for S.R. and appearance of the accused vide order dated 22.8.2008.
6. Being aggrieved and dissatisfied with the aforesaid order of the learned Metropolitan Magistrate, 3rd Court, Kolkata, the present petitioner filed the present revisional application.
7. It is to be considered in this matter as to whether the Learned 3rd, Metropolitan Magistrate, Kolkata, was legal, correct and justified in passing the impugned order or not.
8. Mr. Shiv Sankar Banerjee, learned Counsel appearing for the petitioner submitted that the opposite party/complainant sought for a certificate from the certification authority concerned for using the brand name of the petitioner company representing that their product was also equivalent to the product of the petitioner company ignoring the terms of settlement between the parties reached vide settlement agreement between them on 10th July, 1997, for which the 6 petitioner for his company's interest sent a confidential E-mail to the certification authority, opposing the said erroneous certificate dated 1st July, 2008, issued by the DNV authority to the opposite party/complainant, for withdrawing the same, and the word "spurious manufacturer" is not a defamatory statement nor the petitioner had any intention to defame or cause harm to the reputation of the opposite party/complainant, and the dictionary meaning of the word "spurious manufacturer" as per Webstar's New Twentieth Century Dictionary is "not genuine" and "not proceed from the main or true source", and the petitioner used the word "Spurious Manufacturer" in a sense that the same was not proceeding from the "main" or "true source" and the petitioner/accused is not liable for the offence of defamation in view of Eighth exception to the provision of defamation as depicted in Section 499 of the Indian Penal Code inasmuch as his allegation to the DNV was made in good faith. As such the learned Metropolitan Magistrate was not legal, correct and justified in taking cognizance and issuance of process against the accused under Sections 500/501 of the Indian Penal Code, for which the said proceeding is liable to be quashed. In support of his various contentions learned Counsel for the petitioner has relied upon the decisions reported in 2010(1) CLJ (Cal) 203 in the case of Dipankar Bagchi Vs. State of West Bengal & Anr., 2010 (2) CLJ (Cal) 47 in the case of Sri Atanu Chakraborty Vs. The State of West Bengal & Anr., (2008)1 Cal LT 361 (HC) in the case of Naba Kumar Banerjee Vs. The State of West Bengal & Anr., 2000(1) CHN 185, 2005 (1) CLT 497. 7
9. Mr. Kaushik Gupta, learned Counsel for the opposite party/complainant has contended that the opposite party/complainant carries on business of manufacturing various industrial products including Spare Rubber Element having immense reputation and goodwill and good name for the business in the business parlance before the World. The petitioner/accused is an Officer of M/s.Valkun Technologies Private Limited, who is business rival of the opposite party/complainant and engaged in trade of manufacturing rubber products. On being engaged by the opposite party/complainant on 9th June , 2008, the Certification Authority DNV conducted an investigation and issued a certificate regarding quality of the product of the opposite party/complainant company being "ESBIX- 20101000R" and indicated therein that the same is equivalent to the manufacturing parts bearing number EZ201S of the subsidiary of the petitioner/accused. The opposite party/complainant asked the said DNV to indicate in its inspection certificate that the aforesaid two products of the two companies were same and equivalent. The petitioner thereby raised objection and sent E-mail to the effect that a reputed certifying agency like DNV was certifying some "spurious manufacturers" products by stating them to be equivalent to the product of the petitioner/accused company. By such publication the reputation, goodwill, dignity and honour of the opposite party / complainant company has been lowered down in the estimation of others like DNV personnel, employees and officers of the complainant company. The complainant company was also informed that the said report was declared invalid and withdrawn by the said DNV. By such publication the 8 petitioner/accused has committed the offence punishable under Section 500/501 of the Indian Penal Code, 1860 and so the complainant company filed an application under Section 200 of the Code of Criminal procedure, 1973, before the learned Chief Metropolitan Magistrate, Kolkata, which was registered as complainant case No. C/23315/2008 whereby cognizance was taken, and by order dated 22.8.2008 the learned Metropolitan Magistrate, 3rd Court, Kolkata, issued summons against the accused, and being aggrieved thereby the accused/petitioner preferred the present revisional application before the Hon'ble High Court, Calcutta, but taking cognizance and issuance of process against the accused on the basis of the said complaint was legal, correct and justified, and there is no reason to quash the said proceedings and the Hon'ble High Court cannot also quash such a proceeding without taking evidence as that would be the pre-judging of the whole issue without trial of the accused and as such there will be miscarriage of justice and the provisions of inherent power under Section 482 of the Code of Criminal Procedure, 1973, may be exercised only to give effect to an order under the Code or to prevent abuse of process of the Court or to otherwise secure the ends of justice, but there is no such circumstance in the present case for which the provision of Section 482 of the Code of Criminal Procedure, 1973, can be invoked and as such the petition of the petitioner for quashing of the present proceeding is liable to be dismissed. 9
10.It appears that in this matter the petitioner/accused has challenged the order passed by the learned Chief Metropolitan Magistrate, Kolkata and learned Metropolitan Magistrate, 3rd Court, Kolkata on 14.8.2008 and 22.8.2008 whereby the learned Chief Metropolitan Magistrate, Kolkata, has taken cognizance and learned Metropolitan Magistrate, 3rd Court, Kolkata ordered issuance of process against the present petitioner/accused under Sections 500/501 of the Indian Penal Code. On the basis of a complaint filed by the opposite party/complainant as per the provision of Section 200 of the Code of Criminal Procedure.
11. The provision of Section 200 of the Code of Criminal Procedure reads thus :
"S.200. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witness present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate :.................."
12. In the instant case it appears that the learned Metropolitan Magistrate, 3rd Court, Kolkata, examined the complainant and the witness under Section 200 of the Code of Criminal Procedure heard and perused of the original complaint xerox copies of the documents filed and initial statement of the complainant and the witnesses and finding prima facie case under Sections 500/501 of the 10 Indian Penal Code ordered issuance of process accordingly and fixed dated for S.R. and appearance of the accused.
13. It has been held by the decision reported in 2010(1) CLJ (Cal) 203 in para 3 in the case of Dipankar Bagchi Vs. The State of West Bengal & Anr. that :
" It is well settled that a criminal complaint can be quashed only when it is found that the allegations made in such complaint together with those appearing from the initial deposition of the witnesses do not disclose commission of any offence. At this stage the truth or falsehood of the allegations cannot be gone into nor any defence material can be taken into consideration."
14. It has been held by the Hon'ble High Court in the decision reported in 2010 (2) CLJ (Cal) 47 in the case of Sri Atanu Chakraborty Vs. The State of West Bengal & Anr. that :
"12. .............. It is true that the High Court while exercising it revisional jurisdiction must confine itself to the correctness, legality and propriety of any finding, sentence or order recorded and passed and regularity of any proceeding of any inferior Court but the scope and amplitude of its inherent jurisdiction is much more wider and High Court can always make such orders as may be necessary for the ends of justice. Although such 11 jurisdiction ought to be exercised very sparingly and in rarest of rare cases, but exercise of such jurisdiction should not be refused in appropriate case, ex debito justitiae, to do real and substantial justice for the administration of which alone the Court exists otherwise there will be a travesty of justice."
15. As such it is to be considered first as to whether the complaint together with the initial deposition of the complainant and witnesses disclosed commission of the alleged offences or not, and if any prima facie case is disclosed in the complaint and in the initial deposition, then cognizance may be taken in that case. In this case it appears that there is allegation of offences under Sections 500/501 of the Indian Penal Code against the accused. So, the provisions of Sections 500 and 501 of the Indian Penal Code should be looked into. The provisions of Section 500 and 501 of the Indian Penal Code read thus :-
"Section 500. Punishment for Defamation. Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both."
"Section 501. Printing or engraving matter known to be defamatory. Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory 12 of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine or with both."
16. In the instant case it appears that the complainant has alleged in his complaint that the complainant company carries on business of various industrial products including spare rubber elements, couplings having immense reputation, goodwill and good name in the business parlance all over the world, and the company of the accused named M/s. Valkun Technologies Private Limited also manufacture identical spare rubber elements as are manufactured by the complainant/company and has business rivalry with the complainant, but on 9th July, 2008, the accused sent a communication to Mr. Kamal Kumar of DNV regarding their objection to the effect that a reputed certifying agency like DNV was certifying some other "spurious manufacturer's" products as equivalent to the product of said M/s. Valkun Technologies Private Limited or M/s. Vulcan Kupplungs, and by the expression "other spurious manufacturer's product" the accused has only meant the product of the complainant company and the complainant company thereby understood that the complainant company was given to understand thereby that the complainant company is engaged in manufacturing "spurious" articles and try to deceive the customer and the product manufactured by the company of the accused was far superior. The communication of the said inspection agency named DNV was 13 forwarded to the complainant company on 10th July, 2008, and it has also been mentioned in the complaint of the complainant that the employees and officers of the complainant's company flabbergasted to read the said written communication of the DNV and discussed over the issue and expressed their ill feeling to the Director of the complainant company in presence of the complainant and it could be realised that the reputation, goodwill, dignity and honour of the complainant has been lowered down in their estimation like DNV personnel, employees and officers of the complainant company thereby, and the complainant company has been seriously defamed by the accused thereby and serious harm has been caused to the complainant company thereby. At the time of statement on S.A. also the witness Sri Asit Mukherjee making statement on behalf of the complainant/company also mentioned that on 9th July, 2008 accused company wrote a defamatory letter to DNV describing their company as "spurious manufacturer", and the officer and staff of their company expressed their ill feeling thereby, and their reputation and goodwill is in a vulnerable condition after publishing of the said defamatory letter. From the afore-mentioned circumstances, averments of the complaint, and statement of witness examined on S.A., learned Metropolitan Magistrate, 3rd Court, Kolkata, found a prima facie case under Sections 500/501 of the Indian Penal Code against the accused company and consequently he issued process against the accused accordingly.
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17. Apparently there were some materials before the learned Magistrate concerned for taking cognizance and proceeding further and issuing summons against the accused petitioner under the aforesaid provisions of law, and for that reason he found prima facie case and ordered issuance of summons against the accused petitioner. Whether the word "spurious manufacturer" tantamounts to defamatory statement or whether the accused company really intended to defame or cause any harm to the complainant company or whether the complainant company has really been defamed thereby and whether the allegation of defamation has been proved by evidence and whether a plea of good faith can be taken or not by the accused petitioner at this stage in such a case or really any harm has been caused to the reputation of the complainant company thereby or not, are the matters of evidence, which should be considered at the time of trial of the accused, and all these points cannot be considered at this stage without taking evidence and those questions may be well considered and answered at the time of trial of the case on merits and it would pre- judging of the whole case on merit before trial of the accused if those points are considered and answered at this stage. At this initial stage it would be sufficient for issuing process if the complaint discloses an offence and then process should be issued. In the instant case it appears that the learned Metropolitan Magistrate concerned issued process against the accused finding prima facie case under Sections 500/501 of the Indian Penal Code.
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18. The stage of recording of evidence has not yet been reached and in absence of evidence finding on aforesaid issues cannot be made without evidence, but it is clear that the learned Metropolitan Magistrate took cognizance and issued process against the accused petitioner finding prima facie case on the basis of the complaint of the complainant as well as the statement of the complainant and witness on S.A. and there was no illegality, incorrectness or irregularity in taking cognizance and issuing process against the petitioner/accused company.
19. As regards the quashing of proceedings under Section 482 of the Code of Criminal Procedure it appears that the section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the code ; (ii) to prevent abuse of the process of the court; and to otherwise secure the ends of justice. The provision of Section 482 of the Code of Criminal Procedure reads thus :
"S. 482. Saving of inherent power of High Court. - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to 16 prevent abuse of the process of any Court or otherwise to secure the ends of justice."
20. It has also been held by the decision reported in (2010)3 Supreme Court Cases (Cri) 138 in para 20 in the case of Jeffrey J. Diermeier and Another Vs. State of West Bengal and Another that :
"...........The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the code ; (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."17
21. In the instant case it appears that petitioner has prayed for quashing of the present proceeding immediately after taking cognizance and issuance of process against him as accused, but evidence is yet to be taken in the said case and until evidence is taken it is not possible to ascertain as to whether the accused committed the alleged offence under Sections 500/501 of the Indian Penal Code or not, but the fact remains that the learned Metropolitan Magistrate concerned has already taken cognizance and issued process against the accused under Sections 500/501 of the Indian Penal Code finding prima facie case on the basis of the complaint of the complainant as well as his statement on S.A. under Section 200 of the Code of Criminal Procedure in compliance with the provisions of Section 200 of the Code of Criminal Procedure. At this stage it would be premature for the High Court to consider as to whether the petitioner accused has really defamed the opposite party/complainant by any imputation concerning the opposite party/complainant intending to harm its reputation or printed or engraved any defamatory matter concerning it, or whether the opposite party/complainant was defamed and harm was caused to it thereby or whether the offences alleged by the complainant would or would not be proved by evidence, and the point that whether communication of the petitioner/accused in writing which has been alleged to have been done by the petitioner/accused, was done in good faith or that will come under the exception eighth of Section 499 of the Indian Penal Code or not, are matters of evidence and it would be the pre-judging 18 of the whole issue on merit before trial if the aforesaid points are taken for consideration at this stage and for that reason it cannot be said that the cognizance taken in the said case on the basis of the statement of complaint and witness on S.A. and other materials, and issuance of process was also bad and is liable to be quashed.
22. It has also been observed by the Hon'ble Supreme Court of India in the decision reported in 2008 (7) Supreme 636 in para 16 in the case of M.A. Rumugam Vs. Kittu @ Krishnamoorthy that :
" 16. It is now a well-settled principle of law that those who plead exception must prove it. The burden of proof that his action was bonafide would, thus, be on the appellant alone."
"17. At this stage, in our opinion, it would have been premature for the High Court to consider the materials placed by the appellant before it so as to arrive at a definite conclusion that there was no element of bad faith on the part of the appellant in making the said complaint before the police authorities."
23. It has been decided by the decision reported in (2008)1 CAL LT 361 (HC) in the case of Sri Naba Kumar Banerjee Vs. The State of West Bengal & Anr. that in case of quashing of criminal proceedings under Section 482, the exercise of inherent power under Section 482 of the Code 19 of Criminal Procedure by the High Court is legally permissible in case of an application styled as one under Article 227 of the Constitution of India. But in this case there is no such case that the petitioner has prayed for exercising inherent power under Section 482 of the Code of Criminal Procedure in any application under Article 227 of the Constitution of India.
24. It has been held by the decision reported in 2001 Supreme Court Cases (Cri) 974 that :
"........... Even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency".
It has already been discussed that whether any offence under Section 500/501 has been made out or not, and taking cognizance and the issuance of process at the aforesaid stage was correct or not could be considered at the time of trial after taking evidence.
25. It has been decided by the decision reported in 2000 Supreme Court Cases (Cri) 47 in the case of Trisuns Chemical Industry Vs. Rajesh Agarwal and Others that under Section 482 of the Criminal Procedure Code, 1973, criminal prosecution cannot be thwarted merely because civil proceedings 20 are also maintainable. So, in the instant case even if there be any civil case pending between the parties that will not stand as a bar to the prosecution of the criminal case against the petitioner.
26. It has been held by the decision reported in (2004) 1 Supreme Court Cases 691 in the case of State of M.P. Vs. Awadh Kishore Gupta and Others that under Section 482 of the Criminal Procedure Code, 1973 quashing of proceedings by appreciating the evidence is not permissible and quashing of investigation and proceedings by High Court acting upon documents annexed to the petition under Section 482of the Code was not proper and it was impermissible for High Court to look into materials, the acceptability of which was essentially a matter of trial and inherent power under Section 482 is to be exercised sparingly, carefully and with caution and may be exercised to give effect to an order under the code or to prevent abuse of process of the court or to otherwise secure the ends of justice.
27. It also appears that if prior to the appearance of the accused and explaining the substance of accusation to him and recording his plea the impugned proceeding is quashed by an order, then that order would be wholly perverse and would result in miscarriage of justice as that would be the pre-judging of the whole issue without trial of the accused and it has been so held by the Hon'ble Supreme Court in the decision reported in (1981) 3 SCC 208 in the case of Sewakram Sobhani Vs. karanjiya R K. 21
28. It has been decided by the decision reported in 1997 CRI. L.J. 212 (Supreme Court) in the case of Shatrughna Prasad Sinha Vs. Rajbhau Surajmal Rathi and Others in Para 13 of Page 214 that :
"...............At this sage, we cannot embark upon weighing the evidence and come to any conclusion to hold, whether or not the allegations made in the complaint constitute an offence punishable under Section 500. It is the settled legal position that a Court has to read the complaint as a whole and find out whether allegations disclosed constitute an offence under Section 499 triable by the Magistrate. The Magistrate prima facie came to the conclusion that the allegations might come within the definition of 'defamation' under Section 499 IPC and could be taken cognizance of. But these are the facts to be established at the trial. The case set up by the appellant are either defences open to be taken or other steps of framing a charge at the trial at whatever stage known to law. Prima facie we think that at this stage it is not a case warranting quashing of the complaint filed in the Court of Judicial Magistrate, 1st Class at Nasik. To that extent, the High Court was right in refusing to quash the complaint under Section 500, IPC." 22
29. It has also held by the decision reported in AIR 1992 Supreme Court 1379 [Para 6] Smt. Chand Dhawan Vs. Jawarharlal and Others that :
"............This Court has in various decisions examined the scope of the power under Section 482, Cr.P.c., and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the court or otherwise to secure the ends of justice. No infliexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. When the allegations in the complaint prima facie constitute the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint."
In the instant case it does not appear that the continuance of the present proceedings would be an abuse of the process of the court or would defeat the ends of justice.
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30. It has also been held by the decision reported in the 1993 Supreme Court Cases (Cri) 591 [Para 8 ] in case of Radhey Shyam Khemka and Another Vs. State of Bihar that :
"........ This Court has repeatedly pointed out that the High Court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial court. The power under Section 482 of the Code has been vested in the high Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or inquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed."
In the instant case it appears that the learned Metropolitan Magistrate concerned has already taken cognizance and has ordered issuance of process against the accused finding prima facie case, but no illegality, irregularity was done in taking cognizance and issuance of process in the instant case, nor there was any abuse of process of the Court thereby, nor the ends of justice has been defeated thereby. The facts and circumstances of some other decisions relied upon by the learned Advocates of the parties and facts and circumstances of this case are not similar and so those are not applicable in this case.
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31. Having regard to the submission of the learned Counsels for the parties, materials on record and other circumstances it appears that the learned Chief Metropolitan Magistrate, Kolkata, and the learned Metropolitan Magistrate, 3rd Court, Kolkata, took cognizance and issued process against the petitioner/accused after hearing the complainant, perusing the complaint and xerox copies of documents and initial statement of the complainant and witness recording the statement under Section 200 of the Code of Criminal Procedure and finding prima facie case under Sections 500/501 of the Indian Penal Code ordered issuance of process against the accused and fixed date for S.R. and appearance of the accused, and there was no illegality or irregularity in taking cognizance or issuance of process to the accused/petitioner nor there has been any abuse of process of the Court, nor any miscarriage of justice has been caused thereby, rather the ends of justice has been secured thereby, and for that reason there is no reason to interfere with the impugned proceeding or order, which was legal, correct and justified order of the learned Metropolitan Magistrate concerned, and as such the same stands.
32. It is made clear that this Court has not gone into the merits of the case and every thing in that regard is kept open.
33. As a result the revisional application fails. Accordingly the CRR No. 3832 of 2008 stands dismissed.
34. The interim order of stay stands vacated.
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35. A copy of this judgement along with the lower Court record be sent to the learned Court below for information and necessary action with a direction to proceed with the impugned proceeding according to law expeditiously.
36. Urgent xerox certified copy of this judgement, if applied for, be supplied to the parties expeditiously.
( Mrinal Kanti Sinha, J. )